Coit v. Houston. when they pleased. On the part of the defendant, [query? plaintiff ] it was proved that on the 11th of February 1801, the defendant called at the *counting-house of [*245] the plaintiffs, and told their clerk that he had come to inform the plaintiffs that he could not deliver the coal because Burrall detained them. The witness informed the plaintiffs of this, and the present suit was soon after commenced. It also appeared that the plaintiffs had never taken any part of the coal, but that the defendant, in the winter of 1802, took from the yard all that remained, being upwards of one hundred chaldrons; the yard then lying open. On the part of the plaintiffs, it was contented, that the agreement respecting the coal could not operate as a satisfaction of the note in question, without a delivery, and acceptance in fact, of the coal. On the part of the defendant, it was insisted that there was an actual acceptance of the coal; and if not, there was, at least, a tender and refusal to receive, which was equivalent to an acceptance. [The jury found a verdict for the defendant.] Hopkins and Riggs, for the plaintiffs. Hamilton and Evertson, contra. THOMPSON, J. The first point which presents itself for consideration, is the agreement set up by the defendant, as a satisfaction of the note. It is said that this agreement is a mere nudum pactum; that there was no consideration; that it contained no mutuality, inasmuch as the plaintiffs did not agree to accept; that it contained no sufficient certainty, and was nothing more than a proposition to pay. But, on examination, I cannot consider this agreement so defective. The whole circumstances stated, show that the transaction was fair and honest, on the part of the defendant. The coal was to be delivered at 10 dollars per chaldron, which, according to the case, appears to have been the then market price. The consideration was the money due on the note in question; and although no time is fixed for the delivery of Coit v. Houston. [*246] the coal, yet, in *judgment of law, they were to be delivered immediately, or on demand. It appears to me, therefore, that this agreement contains all the essential requisites to a valid contract, and upon which an action might be sustained, in case of a refusal to deliver the coal. This being the case, it remains to be considered, whether this contract can be set up by the defendant, as a satisfaction for the note. I do not think the present case directly involves a determination of the abstract question, whether accord, without satisfaction, would be a good plea. As a general rule, or principal of law, as applicable to a plea of this kind, it has been frequently decided that a plea of accord simply, without satisfaction, would be bad. And the rule, I have no doubt, is a sound one, that it must appear upon the face of the pleadings, either that the party has actually received the thing pleaded, as a satisfaction; or that the contract set up as the substitute, shall afford him redress for the original demand. The leading reason which appears to govern almost all the cases, that determine that a plea of accord only is bad, is, that an action could not be sustained on the accord, on the ground of a nudum pactum. But this reason ceases, where the agreement set up as the substitute will sustain an action, and afford complete redress. From an examination of the authorities, I think I am warranted in adopting as a general rule, that an agreement, in order to be an effectual plea in bar, must be executed and satisfied with a recompense in fact, or with an action, or other remedy to execute it and recover a recompense. (Plowd. 5, 11. Sir T. Jones, 168.) And in the case of Case v. Barber, (Sir T. Ryan, 450,) accord, without satisfaction, but with tender, was pleaded, and the court held it good; saying that formerly it was necessary that the agree ment should appear to have been executed, yet of late, it had been held, that upon mutual promises, an action lies, and, consequently, there being equal remedies on both [247] sides, an accord may be *pleaded without execution, as well as an arbitrament. If 1 am correct, then, that Coit v. Houston. the agreement to deliver the coal was such a one as would sustain an action, and afford a remedy to the plaintiffs for their demand, it comes within this rule and decision. It is said, however, that these judgments have been overruled by later decisions. There is certainly much obscurity, and, perhaps, some contradiction, in the books, on this subject; yet for the authorities cited by the plaintiffs' counsel it does not appear to me that the great and leading principles contained in the above cases are materially contradicted. Most of these cases were decided on demurrer, either to the form of the plea, or the nature of the satisfaction disclosed by it. In the case of Paine v. Martin, (2 Stra. 573,) the question came before the court on demurrer, and turned on the insufficiency of the covenant of acceptance. In the case of Preston v. Chrismas, (2 Wils. 86,) the judgment was given on the ground, that a release of the equity of redemption was no satisfaction in law. In the case of James v. David, (5 Term Rep. 141,) the question arose on a demurrer to the plea which was accord without satisfaction, and the court [adjudged it insufficient. In the case of Heathcote v. Crookshanks, (2 Term Rep. 24,) the decision turned on the question of nudum pactum and that the sum tendered was less than the original demand. In the two cases cited from Cro. Eliz. (193, 304,) one was decided on the ground that the accord and tender was for a less sum than the original demand; and the other was an action of debt on bond, and the accord and satisfaction set up, was a promise by parol to pay a sum of money at a day subsequent to the day mentioned in the bond, and was merely executory; and, being by parol, could not discharge the bond. *I do not think the present case comes within [*248] any of the principles decided in those cases. The plea is tantamount to a plea of accord and satisfaction. There is no objection here to the amount of the satisfaction. The full principal and interest of the note were to be paid VOL. III. 41 Coit v. Houston. in coal, at a price agreed on, which appeared to be the market price at that time. If the plaintiffs had actually received the coal, the satisaction would have been complete; and no possible objection could be raised against it. Or if the sale of the coal would be considered as complete, or the plaintiffs, by their own acts, waived any thing farther being done, on the part of the defendant, in order to complete the sale, and the coal remained afterwards at their risk, I cannot see why satisfaction was not in fact received. Those were points, however, properly submitted to the determination of the jury, who, by their verdict, have decided the fact, and, I think, in a manner fully justified by the testimony. The plaintiffs, after the agreement for the coal, offered them for sale to Dodge. and when requested by the defendant to take them away, they promised to do it. The only objection with them seemed to be, that it was not at that time convenient; not that they considered the contract for the sale of the coal as incomplete, or that any thing farther was to be done on the part of the defendant, in order to complete it. There was no pretence that the coal were to be brought by the defendant to the plaintiff's store, or yard. These were circumstances from which the jury might infer an actual acceptance at the place where the coal lay, and that they were there at the risk of the plaintiffs. Although I do not think it necessary, for the purpose of determining the present question, to say, that in all cases a tender and refusal shall be equivalent to an actual acceptance; yet I think it a rule founded in good sense, and one that is not contradicted by the general tenor of the authorities. Whether, in this case, [*249] there was a tender and refusal, were questions for the determination of the jury. And even admitting there was no actual legal tender, it would not, in my judgment, alter the result. The party to whom it is to be made, has, undoubtedly, a right to waive that ceremony, and I think the circumstances here are fully sufficient to warrant such an inference. When it is said that a tender and re Coit v. Houston. fusal is equivalent to an actual performance, it is not to be understood that it amounts to an absolute discharge of the party from all liability on the contract. In the case of a tender of money, it only discharges the subsequent interest and costs. And in the case of goods, like the present, it only exonerates the party from responsibility for their safe keeping. But as long as he continues in possession of the goods, he will be bound to deliver them on demand. And if he should dispose of them, he would be answerable for the avails. On the whole, I think it a rule fully warranted by the authorities, that a contract or agreement which will afford a complete recompense to a party for an original demand, ought to be received, as a substitute and satisfaction for such demand, and is sufficient to support a plea of accord and satisfaction. This appears to me to be a rule founded on sound principles, and one calculated for the futherance of justice. In the present case, the plaintiffs' remedy must be upon the agreement for the sale of the coal, in which case complete justice can be dispensed, according to the true intent and meaning of the parties. I am, therefore, of opinion, that no new trial ought to be granted.. LIVINGSTON, J. concurred. The substance of his opinion was as follows: There were acts equivalent, under the circumstances of the case, to a tender of the coal; and that amounted to a performance of the new agreement on the part of the defendant. The contract of the 24th December, 1800, was no doubt valid. The plaintiffs accepted it, and became "parties to it, and there was a consideration [250] on each part. The plaintiffs were to receive coal in payment of the note, at a fixed valuation. The defendant was to receive his note in return. There was a benefit accruing to each party. The contract was also sufficiently certain, and each might have demanded performance instantly. The time and place of the tender were here sufficiently supplied. It is a rule, that money must be tendered to the |